State and Justice agree: No retroactive immunity for Indian diplomat

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Remember the diplomatic crisis with India that followed the arrest last December of a deputy consul general named Devyani Khobragade? Khobragade, who worked at the Indian consulate in Manhattan, was picked up by the Diplomatic Security Services for allegedly committing visa fraud to get her nanny into the United States. Indian officials were outraged when Khobragade said she’d been strip-searched, even though the U.S. Marshals later said that she was not subjected to an internal cavity search. The crisis took a peculiar turn when Manhattan U.S. Attorney Preet Bharara – whom the Indian government criticized for abusing his prosecutorial discretion – put out a statement defending Khobragade’s arrest and processing. Among Bharara’s points in the Dec. 18 announcement: State Department agents had arrested the deputy consul, not prosecutors from his office.

The State Department, meanwhile, was re-evaluating Khobragade’s diplomatic status after the Indian government, following her arrest, appointed her to India’s permanent mission at the United Nations. Khobragade’s lawyer, Daniel Arshack of Arshack, Hajek & Lehrman, told Reuters at the time that Khobragade’s new post entitled her to retroactive diplomatic immunity for her supposed crimes. With the State Department issuing vaguely worded statements of regret about Khobragade’s treatment, I wondered if State might make the whole mess quietly disappear by granting the Indian diplomat immunity. That action would leave U.S. Attorney Bharara and the Justice Department stranded, but would quell foreign allies in India.

Instead, State has chained itself to Justice in the Khobragade case. On Friday, Bharara’s office filed its response to Khobragade’s motion to dismiss the indictment against her. According to the Justice Department brief, which attaches a declaration from the State Department’s Office of the Legal Advisor, Khobragade surrendered any claim to full diplomatic immunity when she left the United States earlier this month. Nor is she entitled to limited retroactive immunity for her conduct as deputy consul, the brief said, because her alleged crimes were not connected to her official duties. What’s interesting is the filing’s lack of ambiguity: The brief leaves no quiet escape route open for the U.S. government. Both State and Justice, in other words, are determined to keep charges against Khobragade alive, in the event she ever falls within the jurisdiction of U.S. courts.

Khobragade’s lawyer, Arshack, offered two rationales for tossing the charges against her (visa fraud and making false statements to federal investigators). Consular officials, unlike full-fledged diplomats, are ordinarily immune only from charges related to their duties. That limited immunity would not shield Khobragade from supposedly lying about her nanny. But according to her lawyer, Khobragade had full diplomatic immunity dating back to August because the United Nations credentialed her as a special advisor during the Indian Prime Minister’s visit to the UN last summer. Those credentials, he said, didn’t expire until December 2013. Moreover, Arshack said, India transferred Khobragade from its consulate to its permanent UN mission on Dec. 20. The State Department subsequently credentialed her as a diplomat, with all of the privileges and immunities that attach to the designation. Khobragade’s diplomatic immunity, Arshack argued, should reach back to cloak her conduct as a consul, which means she cannot face charges for her alleged crimes. “The State Department’s decision to fully grant diplomatic credentials mandates the dismissal of this action,” the brief said.

Not according to the U.S. government. According to the chronology of events laid out in the new brief, the day after the State Department granted Khobragade diplomatic credentials, a grand jury in Manhattan returned the indictment against her. The State Department asked India to waive Khobragade’s day-old diplomatic immunity so she could face prosecution. When the Indian government refused, the U.S. requested that she leave the country. U.S. District Court Judge Shira Scheindlin of Manhattan modified Khobragade’s bail terms and she flew back to India.

When she did, according to the State and Justice Departments, she surrendered her diplomatic status – and any retroactive immunity she held as a diplomat for her actions as a consular official. Khobragade still has limited immunity from prosecution for her actions as a deputy consul, but that protection only covers official acts, the government brief said. (The brief also scoffed at Arshack’s “convoluted and baseless” argument about immunity attaching from the credentials issued by the UN in August because, among other things, that limited UN appointment expired after the prime minister’s visit last August.)

The State Department has previously endorsed the idea of retroactive full immunity to clean up diplomatic messes; as I’ve reported, in 1982 the government granted full diplomatic status to a Saudi Arabian prince who was suspected of holding an Egyptian woman against her will at his Miami mansion. The prince and his family stayed in the United States and were never indicted. But clearly, the State Department has decided in the Khobragade case that it’s worth taking a stand for the principle of accountability for foreign officials.

Khobragade’s lawyer told me that he continues to believe the U.S. Attorney’s office “is wrong on the facts and the law.” His response brief is due Friday.

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Alison Frankel updates On the Case multiple times throughout the day on WestlawNext Practitioner Insights. A founding editor of the Litigation Daily, she has covered big-ticket litigation for more than 20 years. Frankel’s work has appeared in The New York Times, Newsday, The American Lawyer and several other national publications. She is also the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.